Creative Law Network

Updates

FUCT Trademark Registration

On June 24, 2019, in Iancu v. Brunetti, fashion designer Erik Brunetti appealed a decision by the US Patent and Trademark Office (PTO) denying his application to federally register the trademark “FUCT.” The PTO had previously denied the trademark application under a provision of trademark law that prohibits registration of “immoral or scandalous” trademarks. However, in a landmark decision, the Supreme Court ruled in Brunetti’s favor, finding that the “immoral or scandalous” prohibition violates the First Amendment.

Brunetti founded a clothing line using the trademark FUCT, pronounced one letter after the other: F-U-C-T. But read differently, it’s pretty clear what it sounds like, or as the PTO so eloquently described it; “the equivalent of [the] past participle form of a well-known word of profanity.”

The PTO determined that FUCT was vulgar and, therefore, unregistrable. On review, the PTO’s Trademark Trial and Appeal Board affirmed, declaring the trademark to be “highly offensive” and “vulgar” and noting the “negative sexual connotations.” Brunetti responded by arguing that the “immoral or scandalous” bar on trademarks violates the First Amendment.

In evaluating Brunetti’s challenge, the Supreme Court considered its decision just two terms earlier in Matal v. Tam, 137 S. Ct. 1744 (2017), in which the Court declared a ban on registering “disparaging” trademarks unconstitutional. In Matal v. Tam, an all- Asian American rock band called “The Slants” brought suit when they were denied a trademark for their band name as racially disparaging. The Court explained that in Tam, it had reached two conclusions: (1) if a trademark registration bar is viewpoint-based, it is unconstitutional, and (2) the disparagement bar was viewpoint-based. That is, “the government may not discriminate against speech based on the ideas or opinions it conveys.”

 In determining whether the “immoral and scandalous” bar is viewpoint-based, the Court went straight to the dictionary, defining the terms as being inconsistent with “good morals” or “giving offense to the conscience or moral feelings,” respectively. The Court recounted previous PTO registration decisions, in which the PTO refused to register marks communicating “immoral” or “scandalous” views about drug use, religion, and terrorism. Yet, the PTO approved registration of trademarks expressing more accepted views on the same topics, such as religious based brands. Thus, the Court determined that “the facial viewpoint bias in the law results in viewpoint-discriminatory application.” As such, the “immoral or scandalous bar” violated the First Amendment.

So what does this all mean? In a nutshell, this decision is likely to allow registration of a wider selection of trademarks. Words and marks previously thought too scandalous or vulgar for registration may now be granted protection under the First Amendment. The Court determined that it is not the place of the PTO, and the inherently biased examiners, to determine whether a mark is moral or not. The door is now open for a new broad variety of trademarks. Now is the time to register your trademark if you thought it might be refused as immoral or scandalous. The trademark lawyers at Creative Law Network would love to talk to you about this new change and how we can help you register a trademark, scandalous or not!

Dave Ratner
One More Week for the Denver Music Advancement Fund!

There is 1 week left to submit your proposal for the Denver Music Advancement Fund!

This fund, created Denver Arts and Venues in partnership with Illegal Pete’s and LivWell Enlightened Health is providing $100,000 to projects that help to advance The Denver Music Strategy and Denver’s Cultural Plan, IMAGINE 2020.

The deadline to submit proposals is Friday May 17, 2019.

Click Here for more information and submission requirements.

Dave Ratner
Art + Law Greeley
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Colorado Business Committee for the Arts and Colorado Attorneys for the Arts Present: Art + Law Greeley

Art + Law: Greeley is a full day of legal workshops for attorneys, creative professionals and arts organizations that takes place on Tuesday, April 16 at Mirage Productions.

10:00 - 11:30: What You Need to Know About Counseling Creatives.

  • Dave Ratner covers the nuances of counseling creatives and catering to the creative industries

11:30 - 11:50: Colorado Attorneys for the Arts (CAFTA) Info Session for Attorneys

12:00 - 1:00: Interactive Networking Lunch for Attorneys and Creatives

1:00 - 1:20: Colorado Attorneys for the Arts (CAFTA) Info Session for Creatives, Colorado Creative Industries and Greeley Creative District

1:30 - 3:30: Legal Issues for Creatives

4:00 Casual Mixer - Everyone is welcome!

To learn more and register for your spot: Click Here!

See you there!

Dave Ratner
Client Spotlight - Andrea Gibson
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Today’s Client Spotlight features spoken word poet, Andrea Gibson!

Beginning February 25, 2019, Andrea Gibson is touring on their new book, “Lord of the Butterflies”.

In a fierce oscillation between activism and love, Andrea Gibson’s newest literary triumph, Lord of the Butterflies, is a masterful showcase from the renowned poet whose writing and performances have captured the hearts of millions. An artful and nuanced look at gender, romance, loss, and family, this is also a book of protest. While rioting against gun violence, homophobia, and white supremacy, Gibson celebrates gender expansion, queer love, and the will to stay alive. Each emotion in Lord of the Butterflies is deft and delicate, resting within imagery heavy enough to sink the heart, while giving the body wings to soar.

Winner of the first ever Women of the World Poetry Slam in 2008, Andrea Gibson remains one of the most captivating performers in the spoken word poetry scene today. Known for pulling hearts out of chests to either wrench or kiss, Gibson has authored four full-length collections of poems, an illustrated book of their most memorable quotes (Take Me With You, Penguin 2018), and has released seven beloved albums. Gibson regularly sells out 500+ capacity standing room only venues to eager audiences, mouthing along every word, further popularizing the art form and creating a space for each person in the room to feel, and to heal.

Click Here for more information on Andrea Gibson and to find a tour date near you.

Dave Ratner
Client Spotlight - RiNo Art District
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Introducing our new “Client Spotlight” Series! In this series we’ll feature some of our awesome clients and give you a little insight into what they do.

Our first Client Spotlight feature is RiNo Art District! Founded in 2005 by local artists, this north Denver art district is made up of 4 historic neighborhoods: Globeville, Elyria-Swansea, Five Points and Cole. Together with the RiNo Business Improvement District (BID) and the RiNo General Improvement District (GID), RiNo Art District funds and supports this area through advocacy, infrastructure improvements, artist support, community programming, business support, and events. Look out for their next event Side Stories starting March 1st!

We love working in the creative and inviting community that RiNo Art District has worked so hard to create! To learn more and to connect with this awesome organization, visit www.rinoartdistrict.org.

Dave Ratner
Colorado Gives Day
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Today, December 4, 2018, is Colorado Gives Day!

Colorado Gives Day was founded in 2011 as a way to show support for our state’s non-profit organizations, so “Give Where You Live” and give what you can to help Colorado grow!

Click here to donate

Dave Ratner